Immigration Matters

• Author: Bob Carlson
• Pages: 8-8

8 || ABA JOURNAL MARCH 2019

PHOTO BY TOM SALYER PHOTOGRAPHY

President’s Message || By Bob Carlson

Follow Preside nt Carlson on Twitter @ABAPre sident or email abapr esident@america nbar.org.

Immigration Matters

A fairer process is needed for those seeking entry to the United States

“Give me your tired, your poor, your

huddled masses yearn ing to breathe free.”

These words from an Emma L azarus

sonnet, engraved on a plaque on the ped-

estal of the Stat ue of Liberty, are not pol-

icy or law. Yet they embody the ideals and

spirit of America , a land of immigrants.

Despite the countless ways that i mmi-

grants have advanc ed our country and

have helped to fuel innovation and

growth, the United St ates cannot wel-

come everyone who yearns to bre athe

free. Our nation needs t o regulate and

control immigration, have secu re bor-

ders and keep people safe. But develop-

ing clear, comprehensive, practical a nd

humane immigration law is possi ble—and

long overdue.

Policies that separate children f rom their parents

or deny legitimate asylum-se ekers due process vio-

late both our values and est ablished law. The ABA has

made this clear in a let ter sent to the U.S. Attorney

General and Secret ary of Homeland Security.

The ABA has suggest ed guidelines and compiled

thoughtful and well-rese arched publications such

as the recently updated “S tandards for the Custody,

Placement and Care; Legal Repre sentation; and

Adjudication of Unaccompanied Alien C hildren in the

United States.”

While craf ting comprehensive immigrat ion law

in a divided societ y can be di cu lt, it is imperative.

One place to star t is immigration courts.

An independent judiciary is a ha llmark of our

democracy. It encompasses the principle that all peo -

ple are entitled to fair and impa rtial legal proceed-

ings where important right s are at stake. Immigration

courts decide issues t hat are life-altering.

Immigration court s, however, lack the safeguards

that other parts of our jus tice system have. Structural

and procedural issues have re sulted in a backlog of

more than 800,000 cases even t hough in recent years

Congress has added re sources, including a sizable

increase in the number of judges and support s ta .

Immigration court s currently exist within t he

Justice Department. Their per sonnel and opera-

tions are subject to direc t control of the attorney

general. Immigration judges ca n be removed with-

out cause and can be at the mercy of wh atever policy

the attorney general wa nts followed. It can change

from adminis tration to administration. This str uc-

ture creates a fat al fl aw to an independent, impar tial

jud ici ar y.

Restructur ing the immigration adju-

dication system into a n Article I court

is the best solution to promote inde-

pendence, impartial ity, e ciency and

accountability. Ar ticle I legislative courts

are established by Congr ess, and judges

would only be subject to removal for

cause and not without judicial r eview.

The U.S. Tax Court—where judges

are nominated by the president, con-

fi rmed by the Senate and serve terms

of 15 years—could act a s a model. The

idea has been endorsed by the National

Association of Immig ration Judges

for more than two decades. The A BA

adopted policy in 2010 calling for the

creation of Article I im migration courts.

Another problem is represent ation. Access to

counsel and legal inform ation are critical in ensuring

fairness and e ciency in the immigration sy stem, yet

only 37 percent of people in removal proceeding s and

just 14 percent of those detained are repre sented by

counsel. The odds of winn ing an asylum case without

legal representation are one in 10 while those w ith a

lawyer win nea rly 50 percent of their cases.

The ABA supports the right t o appointed counsel

for vulnerable populations in imm igration proceed-

ings, such as unacc ompanied children, and mentally

ill and indigent immigra nts. Budgetary challenges

make this unli kely to happen soon, so access to as

much information about the process is cr itical.

The ABA, supported by it s Commission on

Immigration, wi ll continue to advocate for fairness

and full due process for im migrants and asylum-

seekers in the United States a nd ensure an equitable,

e e ctive process for adjudicating immigration c ases.

This serves the intere st of both the government and

individuals w ithin the system.

Our e orts to solve the problems must not under-

mine the fundamenta l principles that exemplify

America and our just ice system. Welcoming immi-

grants has been a s trength of America since its

founding.

As President George Washingt on said: “The bosom

of America is open to rec eive not only the opulent and

respectable stra nger, but the oppressed and perse-

cuted of all nations and rel igions; whom we shall wel-

come to a participation of all our r ights and privileges,

if by decency and propriety of conduct the y appear to

merit the enjoyment.” Q